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LIBRARY OF CONGRESS 



027 292 909 9 



Hollinger Corp. 
pH 8.5 



ID 5324 
M5 
,917 
opy 2 



By Transfer 

DEC 291917 



STRIKES ON PUBLIC UTILITIES 
A REMEDY. 



WALTER GORDON MERRITT 

Assocutb Counsel 
AMERICAN ANTI-BOYCOTT ASSOCIATION 



PUBLISHED FOR CIRCULATION BY THE 

American Anti-Boycott association 

135 BROADWAY. NEW YORK CITY 






V77, 



STRIKES ON PUBLIC UTILITIES 
A REMEDY. 

By Walter Gordon Merritt, 

Associate Counsel, American Anti Boycott Association 

Introductory Statement. 

A strike on our railroads such as was narrowly 
averted last summer is a barbaric method of pro- 
tecting the rights of the workers and carries with 
it not only commercial paralysis but privation and 
death. No self-respecting nation can permit its 
private or public interests to be imperiled by the 
uncertainties of such interruptions. It is essen- 
tial to preparedness for both peace and war that 
governmental arbitration should succeed to indus- 
trial strife on public utilities, and that paralysis 
of transportation facilities, whether by capital or 
labor, should be absolutely prevented by law. 

Many measures have been advanced for the pro- 
tection of the public against such mischief, and 
definite proposals to that end were recommended 
by a congressional committee over twenty years 
ago, and more recently by our President as a re- 
sult of the threatened railroad strike of last sum- 
mer. Similar suggestions have been forthcoming 



in some of our states, but the fundamental idea in 
all of these measures involves either the prohibi- 
tion of strikes and lockouts pending investigation 
by some public agency, as in the Canadian Act, or 
the permanent prohibition of strikes and lockouts 
with provision for some impartial tribunal or ad- 
ministrative commission, like the Interstate Com- 
merce Commission, which shall have full power to 
adjudicate all grievances. The prohibition of 
strikes pending investigation seems the least de- 
sirable of these two plans, since it affords inade- 
quate protection either to the public or the work- 
ers; inadequate to the public because the tempo- 
rary prohibition of such strikes does not result in 
their entire elimination; inadequate to the work- 
ers, because it still leaves their ultimate protection 
to industrial warfare, while temporarily suspend- 
ing such warfare and affording the employer an 
opportunity to mobilize. This provokes defiance 
of the law, just as the mobilization of one nation 
hastens the attacks of another. This limited pro- 
hibition of strikes leaves the question of wage and 
hours to be determined by economic coercion while 
hobbling the unions in the use of such coercion. 
There should be no restrictions upon the right 
of the workers to strike for better conditions of 
employment on public utilities, unless, by the same 
law, power is given to some g'overnmental agency 
to compel the employer to comply with those con- 
ditions of employment which are adjudicated by an 
impartial tribunal to be fair and just to the work- 
ers. The entire prohibition of strikes, with pro- 
vision for an impartial tribunal, safeguards the 
interests of the workers far more securely than the 
uncertain chances of industrial war. "Economic 
might" may be no more just than "Military might," 
but orderly adjudication is our best approxima- 
tion to justice. 

So far as railroads are concerned, the Eailroad 
Brotherhoods and the American Federation of La- 



2 



bor have stood unitedly, against arbitration, vol- 
untary or compulsory, on the ground that it is im- 
possible to secure neutral arbitrators, and further 
oppose the enactment, of any law which regulates 
wages or hours on public utilities by an impartial 
tribunal and temporarily or otherwise restricts or 
prohibits strikes thereon. Though such a strike 
as was threatened on our railroads is distinctly a 
death-dealing act, it was endorsed by the Federa- 
tion of Labor as well as the Eailroad Brotherhoods, 
and instead of being abandoned is even now held 
in reserve. Only recently the chief of one of the 
Brotherhoods is reported as saying before a con- 
gressional committee, "I wish to God that I never 
had recalled the strike order," and Mr. Gompers is 
reported as saying that, "Law or no Law, president 
or no president, such a law will not be obeyed." 
At a hearing before the Public Service Commission 
of Xew York on February 7th, 1917, when a pro- 
posed law of this nature was under consideration, 
Mr. Gompers again declared that labor would dis- 
regard any law which restricted strikes on public 
utilities. It is therefore fair to say that labor 
leaders oppose and may resist any measures to this 
end. 

In view of this outspoken defiance by some labor 
leaders, the all-important question is the method 
of enforcing such a law. No considerable opposi- 
tion arises from capital, and no one doubts the 
feasibility of enforcing such a law against capital 
where property rights stand as a hostage for good 
behaviour. But many people impressed by these 
emphatic and defiant statements feel that such a 
law is certain to meet- with a united resistance of 
the workers with which it cannot cope. This as- 
sumes too much. Workers justlv treated and hav- 
ing access to an impartial tribunal for the cor- 
rection of grievances would not instinctively resist 
the law. We even believe that the rank and file, 



uninfluenced by the leaders, would welcome the 
law and discover in it more ample protection to 
their interests than through the uncertainties of 
industrial war. 

It is therefore reasonable to expect that the 
source of opposition and resistance will arise from 
the organizations and their leaders, rather than 
from the workers, and it is against such resistance 
that the law should buttress itself by appropriate 
penalties and remedies. The workers will not 
strike in violation of such a law if Society is not 
too impotent to protect them against organized 
incitement to organized law breaking. In the fa- 
mous Debs case, even after the riots were started, 
it was the injunction and not the troops which 
saved the day. Whatever truth there is in this 
claimed unenforceability of such a law, arises from 
attempts to imprison a multitude of people who 
have already been inflamed and who, by reason of 
their numbers and circumstances, are not fully 
amenable to civil authority. All agitation should 
be ''nipped in the bud." Society must look more 
to organizations and their officers for responsibility 
and protection instead of proceeding against the 
rank and file after the unlawful strike is organized. 
Prevention and not punishment should be the first 
aim. If this principle is applied to all disturb- 
ances where violence is encouraged, we will have 
less rioting and disorder in this country. 

In view of the popular fallacies which prevail 
upon this subject and its enormous importance to 
public welfare, and in view of the fact that the 
practical enforcement of such laws against labor 
seems to be the only difficulty at issue, it is desir- 
able to state the fundamental principles applicable 
to this difficulty which should be considered in 
framing such a law. 

FUNDAMENTAL PRINCIPLES. 

1. Adequate and effective remedies and penal- 
4 



ties, both civil and criminal, must be provided, 
whereby the enforcement of the law may be rea- 
sonably secured. Without these, the law had bet- 
ter not be enacted. Eestrictions on the right to 
strike and penalties to secure their enforcement 
can be justified on the ground that the law makes 
ample provision for the welfare of the workers by 
adjudication of their grievances before an impar- 
tial tribunal. 

2. The main reliance for enforcement should 
be upon the organization and officers instigating, 
stirring up and manipulating the strikes, rather 
than the rank and file, who are sometimes mis- 
guided victims. Experience proves that in the ab- 
sence of union agitation and the operation of or- 
ganization machinery, men who are not oppressed 
do not on their own initiative engage in strikes, 
and this is particularly true on public utilities. 

3. CIVIL EE^IEDIES.— The labor unions 
should be suable at law or in equity for injunctions 
and damages, so that their responsibility may be 
thoroughly established. 

a. IN JUXCTIOXS.— Designated public offi- 
cials and the public utility company should both 
have the right to an injunction against acts fo- 
menting or maintaining any strikes in violation of 
the law, including persuasion, picketing, payment 
of strike benefits, and even voting on an illegal 
strike. This is but applying the rule of the 
United States Supreme Court, that any act, how- 
ever innocent or constitutionally protected, be- 
comes unlawful when used in furtherance of an 
unlawful conspiracy. Any labor leader will bear 
testimony that if the various steps essential to the 
commencement or continuance of a strike are en- 
joined, few, if any, strikes on public utilities could 
be called and none would succeed. 



b. DAMAGES.— The public utility company 
affected should also have the right to recover two- 
fold damages for the injury so inflicted, and such 
damages should be recoverable either as an incident 
to the injunction suit or in a separate suit at law. 
In these days when the Eailroad Brotherhoods and 
many prominent unions have an annual income of 
over half a million dollars and large accumula- 
tions on hand for the payment of benefits, the de- 
terrent effect of holding such property as hostage 
for the observance of the law is simply incalculable. 

4. PENALTIES.— Moderate fines should be 
imposed on the rank and file for quitting work in 
concert, so that it is clearly established that the 
act of every one in so quitting is a misdemeanor. 
Forfeiture of rights to bonuses or benefit funds 
might be a practicable method of collecting such 
penalties, but the real enforcement of the law 
should be secured through other remedies and pen- 
alties. 

a. THE OFFICEES OF THE UNION, or 

any others who actively seek to organize or main- 
tain a strike in violation of the law, should be sub- 
ject to severe penalties covering both fine and im- 
prisonment. Here there is no difficulty in .en- 
forcement, because the number of leaders is lim- 
ited 

b. THE UNION, which is responsible for or- 
ganizing or maintaining such unlawful strike, 
should be subject to the payment of large fines 
in the amount of $5,000.00 or more. 

All of these suggestions are directed primarily 
toward strikes and union activities, but the law 
should be so framed as to specify with even balance 
the remedies and penalties for either an unlawful 
lockout or an unlawful strike, whether carried on 
by workers or employers. 



IMPORTANCE OF CONTEACTS. 

All laws looking to the restriction of strikes on 
public utilities and the impartial regulation of 
working conditions, should preferably provide for 
a system of contracts stipulating certain arbitra- 
tion methods of adjusting wage disputes, etc., and 
specifying the requisite' notice for severing em- 
ployment. The. law should provide that any oper- 
ative entering this semi-public service must volun- 
tarily accept and recognize the terms of such a 
contract. Once the contract is executed the sta- 
bility and continuity of the working organization 
is strengthened both legally and practically. 

If the present efforts to secure remedial legisla- 
tion do not succeed the public utility companies 
owe it to the public to establish such a system of 
contracts on their own initiative as fast as practi- 
cable. All contracts of this kind, whether based 
on requirements of legislation or merely a self- 
initiated requirement of the employer, are property 
rights, which, according to the decisions of the 
United States Supreme Court and most of our 
state courts, are entitled to protection against any 
intrusion or impairment on the part of strangers 
or outsiders. Under such circumstances, any la- 
bor organization or its officers which sought to in- 
augurate or maintain a strike in violation of such 
contracts could be enjoined and held for damages 
and all the usual steps incident to such unlawful 
strikes, and so necessary to their success, could be 
enjoined, however innocent and peaceful they 
might otherwise be. In states where this princi- 
ple is not sustained, special laws should be enacted, 
looking to the enforceability of all labor agree- 
ments, whether individual or collective. 

CONSTITUTIONAL QUESTIONS. 

If the Supreme Court of the United States 
should hold that laws regulating wages on public 



utilities are unconstitutional, the difficulty could 
be met by legal provision for a system of voluntary 
contracts providing for arbitration. To insure the 
adoption of these contracts by both employers and 
employees, in such event, the law should provide 
certain handicaps or disadvantages for employers 
and employees who do not elect to make such con- 
tracts, just as some Workmen's Compensation 
Laws, while voluntary in theory, drove the em- 
ployer to accept their terms by depriving him of 
such defenses as contributory negligence and the 
fellow-servant doctrine, if he did not consent. The 
voluntary adoption of protective contracts on pub- 
lic utilities could be induced by similar methods. 



February 15th, 1917. 



LIBRARY OF CONGRESS 

027 292 909 9 



